- So I worked all yesterday on an essay entitled “Hanging Fire”. It was about the media vacuum created while waiting for Jack Smith to indict Donald Trump, and what filled it. Maybe I can use it somewhere else. At 5 pm on August 1, 2023; the Federal Grand Jury in Washington, DC, indicted the former President of the United States for attempting to overturn the Presidential election of 2020.
Peaceful Transition
August 1, 2023: Donald J Trump, the 45th President of the United States, indicted by a Federal Grand Jury for attempting to disrupt the peaceful transition of power from one President to the next. It is a bookmark in American History, beside August 8, 1974 (Nixon’s resignation) and November 22, 1963 (Kennedy’s Assassination).
In American History this “foundation” of democracy was established in 1801. President John Adams, a Federalist; peacefully turned over the Presidency to his arch-rival, Democratic-Republican Thomas Jefferson. There were no riots, no troops in the streets. Adams simply got in his carriage and headed back to his home in Braintree, Massachusetts. Jefferson took the oath of office and moved into the new White House.
The precedent continued For the next two-hundred and sixteen years. Buchanan left a looming Civil War to Lincoln. Democrat Cleveland left the White House to Republican Harrison, to win it back four years later. The unelected President, Gerald Ford, greeted Jimmy Carter on the White House steps. The elder Bush left a sweet note in the Resolute Desk to Clinton, and proud Obama did all he could to assist Trump. But in 2020, that precedent was broken.
USC 18 § 238
Some of us wanted the former President held to the highest standard. We believe that Trump committed Insurrection and Sedition, leading the Nation to the crisis that still threaten our founding principles. But Special Prosecutor Jack Smith and the Grand Jury did not charge him with that, outlined in USC 18 § 2383. It states:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Prosecutor Smith must not believe he has the ironclad evidence to prove rebellion and insurrection. So he proffered four “lesser” charges, all still with large punishments. But those charges do not include the final phrase: “…and shall be incapable of holding any office under the United States”. Even if convicted of the four charges Smith laid out yesterday, Trump could still be elected President.
Process
Jack Smith did not focus on the Insurrection itself, the storming of the Capitol that most watched in horror, and some in MAGA-inspired glee. Instead, he focused on the process of Trump’s attempts to disrupt the count of popular votes for President, and alter the selection of electors in the arcane Constitutional process called the “Electoral College”. There are four counts in this indictment:
- Conspiracy to defraud the United States (by knowingly lying about the results of the 2020 Presidential election)
- Conspiracy to Obstruct an Official Proceeding (by creating “fake” electors and attempting to have them counted)
- Obstruction of and Attempt to Obstruct an Official Proceeding (the direct disruption of the Congressional counting of electoral votes on January 6th, including encouraging the rioters and pressuring Vice President Pence)
- Conspiracy Against Rights (attempting to take away the legal votes of citizens in violation of their Constitutional right to vote).
The sum possible penalty for conviction of all four offenses is a maximum of sixty-five years in prison. While the Federal Courts never give that kind of maximum, certainly a ten or more year sentence could be levied.
Indictment
The forty-five page indictment is written in clear language (not “legalese”). It outlines all of the demonstrable facts that Smith will bring to court to prove each count of the indictment. Read it with the knowledge that each “fact” is supported by evidence. There no longer is supposition, “…well Trump must have known”. Instead, there is direct evidence that in fact Trump did know; he knew that he lost the 2020 election, he knew that Biden was the next President, but continued to lie about it. Beyond that lie, he led and directly participated in a conspiracy to overthrow the vote of the people, and have himself falsely installed as the next President of the United States.
That conspiracy was based on obscure and outlandish interpretations of the law. Even those who created them knew they were wrong (Eastman stated that the Supreme Court would rule against him unanimously). But the President and his co-conspirators proceeded ahead anyway. Power was more important than the Constitution.
Conspiracy
The indictment does not name the co-conspirators. Some of them are obvious: Co-Conspirator 1 is lawyer Rudy Giuliani who led the effort to alter the vote count. Number 2 is John Eastman who developed the “Constitutional theory” to overturn the Electoral vote. Co-Conspirator 3 is Sidney Powell. She joined Giuliani trying to convince America that the election was corrupted.
Co-Conspirator 4 is Assistant Attorney General Jeff Clark, who attempted to use the Justice Department to sow doubt in the election results. 5 is Kevin Chesbro, a lawyer in Wisconsin who developed a “legal basis” to throw out legally chosen electors and replace them with Trump electors.
Co-Conspirator 6 is still less certain, though it may well be past and current Trump advisor Jason Miller, who helped implement the “fake electors” strategy to overturn the January 6th Congressional certification process.
But these six were not charged. Donald Trump is the lone person indicted.
(Oddly missing as a co-conspirator to Trump’s Chief of Staff Mark Meadows, at the center of almost all of these actions. Speculation – has Meadows turned “state’s evidence”?)
Time
Time is of the essence. While we are farther from the 2024 election that it “feels”, it seems crucial that the trial result of Donald Trump should be available for the American voters when they walk into the ballot booth in November of 2024. Smith didn’t want the complexity of a seven person trial; seven different defense attorneys, seven different culpabilities to prove. Instead, he is laser focused on the center of the conspiracy: Donald Trump. That doesn’t mean that the other six, and others not indicted, won’t face justice.
It’s just that justice for Trump cannot be delayed.
